Arifa Nauman vs Govt. Of Nct Of Delhi And Ors. ...
2006 Latest Caselaw 1915 Del

JUDGMENT

Manju Goel, J.

1. Admit.

2. These are two writ petitions preferred by Mrs. Arifa Nauman and Ms. Chitra Srivastava, who have been working as Steno-Typists in the organization of respondent No. 3, namely, Hamdard (Waqf) Laboratories, which was registered as a Waqf with the Sunni Majlis-e-Auqaf, Delhi under the Delhi Muslims Waqf Act, 1943 and later in the year 1964 with the Delhi Waqf Board i.e. the respondent No. 2 under the Waqf Act, 1954. Vide an order dated 1.11.2003 the respondent No. 3, the employer of the petitioners, transferred the petitioners from Delhi to Aurangabad and Bhopal respectively. The prayer in the writ petition is for a mandamus to direct the respondent No. 3 not to give effect to the orders dated 1.11.2003.

3. The principal ground to challenge the order is malafides. It is contended that the husband of the petitioner (Arifa Nauman) is an ex employee of respondent No. 3 and is presently the Joint Secretary of the Hamdard Employees and Workers' Union and he in such capacity had obtained an order in WP(C) 6978/1999 from this Court directing the parties therein who were unions to establish before the respondent No. 3 their majority and to communicate the grievance of the aggrieved parties to the Assistant Labour Commissioner in a time-bound manner and that the respondent No. 3 as well as the Assistant Labour Commissioner failed to comply with the directions of this Court which led to filing of a contempt petition, bearing No. 209/2002 wherein again the respondent No. 3 was directed to negotiate with the majority union not later than 15 days from the date of the said order. It is alleged that respondent No. 3 has not yet complied with that order. Further it is alleged that respondent No. 3 with the connivance of respondent No. 2 has been siphoning off large sums of money and the husband of the petitioner (Arifa Nauman) got certain legal notices issued to respondent No. 3. It is alleged that the respondent No. 3 in collusion with respondent No. 2 out of sheer frustration and in order to pressurize the said husband not to follow up the said legal notice issued the transfer order.

4. The other petitioner Ms. Chitra Srivastava has no case other than that set up by Arifa. Her case of malafide is only that the respondent No. 3 has issued the transfer order against her only to present the transfer order regarding Ms. Arifa as a routine transfer order. Petitioners simultaneously submit that no lady employee of respondent No. 3 has ever been transferred to any out station. They further describe their family situations showing that it will be inconvenient for them to obey the transfer order.

5. The writ petition is vehemently opposed by the respondent No. 3. In the first place it is submitted that the respondent No. 3 is not a State within the provisions of Article 226 of the Constitution of India and the order of transfer dated 1.11.2003 cannot be challenged in the writ jurisdiction of this Court. The respondent No. 3 says that it is neither the instrumentality of the State nor any agency or authority by virtue of which it can be made amenable to writ jurisdiction. Secondly, it is submitted that the right claimed by the petitioners is not a constitutional or fundamental right and no violation of any contractual provision is alleged. Thirdly, it is submitted that the petitioners have an alternative efficacious remedy which has not been availed of and, therefore, the writ petition under Article 226 of the Constitution is not maintainable. As far the allegations of malafides are concerned, it is submitted by the respondent No. 3 that the services of the petitioner's husband had to be terminated on account of misconduct, that the petitioner has misquoted the order of this Court in WP(C) 6978/99, that the notice issued on behalf of the petitioner's husband is illegal, that the petitioner's husband is in the habit of levelling false, frivolous and illegal allegations against the respondent No. 3 and its officers bearers and that there is no collusion between respondent No. 3 and respondent No. 2. Supporting the order of transfer, it is contended by respondent No. 3 that the contract of employment included the provision for transfer and that the transfer has been made pursuant to the requisitions received from the office of respondent No. 3 at Aurangabad and Bhopal.

6. The main defense of the respondent No. 3 is that the writ petition is not maintainable against respondent No. 3 as the respondent No. 3 is not amenable to writ jurisdiction. Reliance is placed on the judgment of the Supreme Court in the case of Binny Limited and Anr. v. V. Sadasivan and Ors. in which the Supreme Court has laid down under what circumstances the writ jurisdiction can be exercised against private bodies. Such situations are (a) if such private body is discharging a public function; (b) the decision sought to be corrected or enforced is in discharge thereof; and (c) if the public duty imposed is not of a discretionary character. The Supreme Court further proceeded to examine in this case as to what was a public function. It cannot be said that the present respondent No. 3 is discharging any public function.

7. A reference has been made to the Industrial Employment Standing Orders Act and to the Delhi Muslims Waqf Act. The petitioner claims that the relationship between the petitioner and the respondent No. 3 is governed by the standing orders certified under the Industrial Employment Standing Orders Act and, therefore, the relationship is of statutory nature and subject to the scrutiny of the writ jurisdiction. Further it is submitted that the respondent No. 3 being registered with the Delhi Waqf Board has become an instrumentality of the State and hence amenable to the writ jurisdiction. Both the arguments are fallacious. The certified Standing Orders do not make the employment governed by Standing Orders similar to that of government servants or of employees of any statutory body. The Standing Orders merely provide the terms of employment. They do not make the employment statutory in any sense of the term.

8. The impact of the certified standing orders was evaluated by the Supreme Court in Rajasthan SRTC and Anr. v. Krishna Kant and Ors. and it said "indeed if it is held that certified standing orders constitute statutory provisions or have statutory force, a writ petition would also lie for their enforcement just as in the case of violation of the Rules made under the proviso to Article 309 of the Constitution. Neither a suit would be necessary nor a reference under Industrial Dispute Act. We do not think the certified standing orders can be elevated to that status. It is one thing to say that they are statutorily imposed conditions of service and an altogether different thing to say that they constitute statutory provisions themselves."

9. Similarly registration with the respondent No. 2 does not provide the respondent No. 3 with the status of instrumentality of the State. The respondent No. 2 is the instrumentality of the State. But all bodies registered with it cannot get the same status. A company registered under the Companies Act or a shop registered under the Shops and Establishments Act does not become a statutory body. The petitioners were aware of this legal position. This was, perhaps, the reason for impleading the respondent No. 1, the Govt. of the NCT of Delhi and the respondent No. 2, the Delhi Waqf Board. The petitions make no allegations against the respondents No. 1 and 2 and seek no relief against any of the two. In fact the petitioner faced with this situation made a prayer for amending the writ petition asking for certain reliefs against respondents No. 1 and 2. However, the applications were eventually withdrawn. Thus, I see no ground on which the respondent No. 3 can be covered by the writ jurisdiction of this Court.

10. Now coming to the question of malafides again, it can be seen that the petitions as framed are not maintainable. For establishing malafides, it is necessary to impute malafides to a particular person. Such person has to be named and has to be a party before the Court. A mere allegation that an employee has been victimised on account of participation in trade union activities is not a good ground for presuming malafides on the part of management. Unless the particular individual carrying malafide intention is imp leaded in the writ petition the Court cannot interfere with an order of transfer. Reference can be made to the judgment of the Supreme Court in the case of Union of India and Ors. v. Ganesh Dass Singh 1995 Supp. (3) Supreme Court Cases 214. Even otherwise the allegations of malafides in the present cases are rather weak. What the petitioner's (Arifa's) husband has done is an act as a member of a union and nothing more. There is no allegation that any particular individual in the management of the respondent No. 3 became inimical to either the petitioner (Arifa) or to her husband on account of the activities of the husband as a member of a trade union. The mere fact that the petitioners have been transferred thereafter will not automatically lead to an inference that the transfer was the consequence of the trade union activities of Arifa's husband. So far as the writ petition of Ms. Chitra Srivastava is concerned, there is not even that kind of allegation. It is not possible to infer without any proof that her transfer has been the fall out of malice or malafides caused by the activities of Arifa's husband.

11. The respondent No. 3 claims that there were requisitions for stenographers from its establishment in Aurangabad and Bhopal when the petitioners had been rendered surplus and this led the management to post the petitioners to Aurangabad and Bhopal rather than to terminate the employment of the petitioners as having been rendered surplus. The petitioners on the other hand claim that the orders of transfer were malafide prompted by the hostility between the management and Arifa's husband. This Court cannot be asked to adjudicate upon the question of fact. This question of fact can be determined only after the parties are allowed to bring evidence in support of their respective pleas. This is not possible and permissible within the writ jurisdiction. Reference can be made to the judgment of the Supreme Court in the case of Ghan Shyam Das Gupta and Anr. v. Anant Kumar Sinha and Ors. and State of M.P. and Ors. v. M.V. Vyavsaya & Co. (1997) 1 Supreme Court Cases 156. Therefore, on this score also the petition must fail.

12. The petitioners' plea is that the respondent has committed unfair labour practice. However, a writ petition cannot be brought to enforce the law against unfair labour practice.

13. The petitioners then claim that no other efficacious remedy being available the petitions have to be entertained by this Court. It is submitted that the Industrial Disputes Act only makes provisions for penal action but provides no relief to the employee who is victimised by such unfair labour practice. No law, however, is cited in support of the argument that to prevent to unfair labour practice by a private body shelter can be taken under the writ jurisdiction of the High Court. It cannot be said that there are no remedies available with the petitioners. The petitioners can seek their remedy under the civil law and can also seek their remedy under the industrial law. It may be true that the petitioners will not succeed in getting an order of injunction either from the civil court or from the industrial court. However, relief in the form of compensation and relief in the form of an award can be expected by the petitioners. Therefore, the plea that the petitioners have a right to be entertained in the writ jurisdiction for want of any alternative remedy cannot be accepted.

14. Before proceeding further, it will be appropriate to refer to the appointment letter of the petitioner (Arifa) dated 25th May, 1993 which ,inter alia, has the following clause:

That your services will be liable for transfer on the existing terms and conditions to any post/section/department/unit of the organisation anywhere in India whether in existence now or that may be set up subsequently.

The appointment letter of Ms. Chitra Srivastava dated 31.5.1993 has the same clause.

15. The petitioners refer to the certified standing orders and submit that there is no clause of transfer in this certified standing orders. However, the certified standing orders provide only the general terms of appointment and will not over-ride or supersede the appointment letter issued to the petitioners. The petitioners never objected to the terms stipulating their transfer till they filed the writ petitions. On merit, therefore, the petitioners have no case. It has been repeatedly held by the Supreme Court that the courts should not interfere with such orders unless there are strong grounds proving malafides or invalidity in the order. Reference can be made to the Supreme Court decisions in the cases of Union of India v. Shri H.N. Kirtania and State Bank of India v. Anjan Sanyal and Ors. .

16. The petitioners' personal circumstances also cannot be considered by this Court. In Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. 1991 Supp(2) Supreme Court Cases 659, the Supreme Court laid down that a person displaced by a transfer of another employee for the avoidance of the other employees hardship could not challenge his own transfer. In Union of India and Ors. v. Janardhan Debanath and Anr. it was held that the matters of transfer were for the employer to determine and the High Court could not direct one way or the other.

17. Therefore, even on merits, the petitioners' case has no strength. Interim orders dated 7.11.2003 in CM No. 12411/2003 in WP(C) 7138/2003 and dated 12.11.2003 in CM No. 12600/03 in WP(C) 7252/2003 stand vacated. Both the writ petitions are, accordingly, dismissed.